PH2\709498.2 1

IN THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

LEXINGTON INSURANCE COMPANY, : CIVIL ACTION 

Plaintiff, : 

v. : NO. 02-CV-4435 

DAVID FORREST et al, : 

Defendants. : 

__________________________________________: 

AFFIDAVIT OF EDWARD M. DUNHAM 

 I, Edward M. Dunham, Jr. being duly sworn according to law, depose and say: 

1. I am Of Counsel with the law firm of Duane Morris LLP (“Duane 

Morris”), One Liberty Place, Philadelphia, Pennsylvania, 19103. 

2. Duane Morris is counsel to Defendant David Forrest. 

3. I submit this Affidavit in Support of the Motion of Duane Morris for 

Leave to Withdraw as counsel for David Forrest. 

4. Duane Morris has represented Mr. Forrest in connection with this 

matter since October 2002. 

 A. Mr. Forrest’s Failure to Abide By His Payment Obligations to Duane 

 Morris and Inability to Pay Future Legal Bills 

5. At the time Mr. Forrest engaged Duane Morris, he agreed in his signed 

engagement letter that 

Our statements will be rendered monthly and are payable within 

30 days. In the event that our statements are not timely paid, or 

that payment terms satisfactory to us are not established, we 

reserve the right to renegotiate the terms of this engagement, to 

terminate it and withdraw from this or any representation of you 

. . . 

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Once a trial or hearing date is set, we will require you to pay all 

amounts then owing to us and to deposit with us the fees we 

estimate will be incurred in preparing for and completing the 

trial or arbitration, as well as jury fees and arbitration fees likely 

to be assessed. If you fail to timely pay any additional deposit 

requested, we will have the right to cease performing further 

work and to withdraw from the representation . . . 

You may terminate our representation at any time by notifying 

us. Your termination of our services will not affect your 

responsibility for payment of outstanding statements and 

accrued fees and expenses incurred before the termination or 

incurred thereafter in connection with an orderly transition of 

the matter . . . 

We may withdraw from representation if you fail to fulfill your 

obligations under this agreement, or as permitted or required 

under any applicable standards of professional conduct or rules 

of court, or upon our reasonable notice to you . . . 

6. Unfortunately, Mr. Forrest has been unable to meet the requirements of 

his engagement with Duane Morris. 

7. For example, after the exhaustion of Mr. Forrest’s initial retainer in 

November 2002, he has taken between two and thirteen months to retire invoiced amounts. 

8. Despite Mr. Forrest’s untimely last payment to Duane Morris, on 

October 27, 2004, several invoices – dating as far back as nine months – remain outstanding. 

9. As of December 14, 2004, Mr. Forrest’s outstanding invoices for 

Duane Morris’ costs and fees total approximately $46,226.74. 

10. Although Mr. Forrest has represented to Duane Morris that he will 

retire this outstanding balance, he has not provided any timeframe or resource for its payment. 

11. More significantly, Mr. Forrest has informed Duane Morris that he 

cannot afford, and is unwilling to pay, additional future legal fees or expenses. 

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 B. Mr. Forrest Has Requested That Duane Morris Terminate Its 

 Representation As His Counsel. 

12. Mr. Forrest has requested that Duane Morris terminate its 

representation as his counsel in this matter, as he is permitted to do both under the terms of his 

engagement of Duane Morris and applicable rules of professional conduct. 

13. To this end, Mr. Forrest instructed Duane Morris to prepare a Motion 

for Leave to Withdraw as his Counsel. 

14. Mr. Forrest has informed me that he is unable to retain or pay substitute 

counsel. 

15. Although Duane Morris has made him aware of the attendant risks of 

representing himself, Mr. Forrest has indicated that he wishes to represent himself pro se from 

this point forward. 

 C. Mr. Forrest and Duane Morris Would Face Great Hardship If Duane 

 Morris is Forced to Continue to Represent Mr. Forrest. 

16. As an initial matter, if the Court requires Duane Morris to continue to 

represent Mr. Forrest, it will prejudice Mr. Forrest, who has expressed his desire to terminate 

the attorney-client relationship with Duane Morris. 

17. Moreover, if Duane Morris is forced to continue to represent Mr. 

Forrest, without the prospect of payment for future fees, Duane Morris also will incur a 

considerable economic hardship in that this litigation is, and will continue to be, protracted 

and expensive. 

18. Duane Morris must obtain voluminous electronic documents from 

Plaintiff at a substantial cost, plus additional costs for paper and Hague Convention discovery. 

Duane Morris must also incur additional fees to establish the appropriate databases to review 

these hundreds of thousands of documents. Moreover, Duane Morris would further be forced 

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to forego legal fees for the many weeks of attorney and paralegal time it will require to review 

these documents. 

19. These fees and expenses to be incurred only begin to address the initial 

discovery to be completed in this case. The parties anticipate approximately 30 to 33 

depositions (approximately 18-21 on Plaintiff’s part and approximately an additional 12 on 

Defendants’ part). Only one deposition is expected to take place within the Eastern District of 

Pennsylvania. The majority of the remainder of the depositions will take place across the 

country, in the United Kingdom, and perhaps in Canada. Indeed, Plaintiff has just scheduled 

three straight days of double-tracked depositions for December 21, 22, and 23 in California. 

Mr. Forrest has instructed Duane Morris not to attend these depositions or participate on his 

behalf. 

20. If the Court were not to permit Duane Morris to withdraw from the 

representation of Mr. Forrest, as Mr. Forrest has instructed us, all of these depositions will 

require Duane Morris to incur great expense in terms of attorney and paralegal preparation 

time, travel time, travel expenses, vendor expenses (including for court reporters, transcripts, 

copying, and other expenses), and other foregone revenue opportunities, with absolutely no 

prospect of being reimbursed.

21. Moreover, Duane Morris must engage financial and insurance experts 

to advise Mr. Forrest on the complex issues involved in the trial of this matter – all at its own 

expense – if the Court does not permit it to withdraw from Mr. Forrest’s representation. 

22. Given the contemplated discovery, even conservative estimates of Mr. 

Forrest’s future legal bills for the next several months range from approximately $15,000.00 

to $20,000.00 per month. Considering Plaintiff’s estimated $5.2 Million in litigation costs in 

the English action on related claims, which involved a review of many of the same documents 

and depositions (interviews) of many of the same witnesses that will need to be deposed in 

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this case, any fee estimate of less than several hundred thousand dollars per year for Mr. 

Forrest’s defense of this case is simply unrealistic. Duane Morris should not be required to 

incur such high legal fees without any prospect of remuneration. 

23. Moreover, given Mr. Forrest’s practice, and expressed continued 

intention, of limiting his communications with Duane Morris so as to limit his incurrence of 

legal fees, Duane Morris cannot continue in its representation of Mr. Forrest without 

infringing on and breaching its professional obligations as members of the bar to the Court 

and to Mr. Forrest. 

24. For these reasons, and for the reasons set forth in the Motion for Leave 

to Withdraw as Counsel for David Forrest, in support of which I submit this declaration, I 

urge the Court to release Duane Morris from its representation of Mr. Forrest. 

This _____ day of December 2004, I declare under penalty of perjury pursuant to the laws of 

the United States of America that the foregoing is true and correct. 

Dated: December ____, 2004 /s/ Edward M. Dunham 

 EDWARD M. DUNHAM 

Sworn to and subscribed before me 

this _______ day of December, 2004 

 

NOTARY PUBLIC 

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